IFES Ukraine Election Bulletin #78 (January 31 – February 13, 2019)
2019 Presidential Election Update
By February 8, the Central Election Commission (CEC) finalized the registration of candidates for the March 31 presidential election. The CEC registered 44 candidates, including Andriy Sadovyi of Samopomich; Yevheniy Muraiev, apparently affiliated with the political party Nashi; Anatolii Hrytsenko of Civic Position; Yurii Boiko of the Opposition Platform For Life; Oleh Lyashko of the Radical Party; Yuliya Tymoshenko of Batkivshchyna; Ruslan Koshulynskyi of Svoboda; Volodymyr Zelenskyi of Servant of the People; Dmytro Hnap of Power of the People; and, incumbent President Petro Poroshenko who runs as an independent candidate.
The CEC has accredited 138 civil society organizations to observe the presidential election. This is the highest number of domestic observer groups ever registered in Ukraine.
On February 11, the CEC adopted decisions regarding state funding of the election. Resolution No 284 increased the administrative expenditure on the presidential election by almost UAH 10 million ($ 370,000). CEC Chair Tetyana Slipachuk said this id due to the increase in number of registered candidates to 44. The budget approved by the CEC on January 3 was based on an estimated 25 presidential candidates. By its Resolution No 285, the CEC adopted the entire budget for the preparation and conduct of the presidential election. The total amount is UAH 2,355 million ($83.52 million) and includes allocations to lower level election commissions.
On February 12, the CEC approved the list of districts where the presidential election will be held. Due to the temporary occupation of certain territories, the presidential elections will not be held in Crimea. In Donetsk oblast, elections will be held in 12 out of the 21 electoral districts, and in Luhansk oblast – in 6 out of 11 districts. Thus, no organizational measures for the 2019 presidential election will be carried out in the annexed Crimea and the occupied territories of Donetsk and Luhansk oblast.
As part of its project to check electoral facts, the VoxCheck published an article depicting false information and manipulations in speeches and statements of presidential candidates and political leaders titled “Lie-2018”. According to their research, Batkivschyna Party leader Yuliya Tymoshenko most often did not tell the truth, followed by the Opposition Platform For Life co-chair Vadym Rabinovych and Radical Party leader Oleh Liashko. The project analyzed 1,962 claims covering the topics of army funding, the economic environment, the fight against corruption, medical and education reforms, pensions and subsidies.
Opinion Polls Provide Updates on the Pre-Election Climate
In early February, the Razumkov Center, the Kyiv International Institute of Sociology (KIIS), the Center for Social and Marketing Research and the Sociological Group Rating presented the results of their recent opinion polls in advance of the presidential election on March 31.
Their joint survey research shows comedian Volodymyr Zelenskyi, who played the nation’s president in a popular television series, surging ahead of incumbent President Petro Poroshenko and former Prime Minister Yuliya Tymoshenko. Some 23 percent of respondents supported Zelenskyi, while Poroshenko and Tymoshenko had 16.4 and 15.7 percent, respectively. Opposition Platform For Life leader Yurii Boyko had 9.3 percent support, former Defense Minister and Civic Position political leader Anatolii Hrytsenko was at 8.1 percent and Radical Party leader Oleh Liashko at 6.7 percent. The poll surveyed 11,000 eligible voters earlier this month and has a margin of error of 0.9 of a percentage point.
A survey conducted by the Sociological Group Rating in January also placed Zelenskyi first with 19 percent, followed by Tymoshenko at 18.2 percent and Poroshenko at 15.1 percent. According to the poll, the support to Zelenskyi and Poroshenko have increased significantly over the past month with a slight decrease in the support to Tymoshenko. The scores of the other candidates have not undergone significant change. The poll covered 6,000 respondents and had a margin of error of 1.3 percentage points.
According to another research, Zelenskyi leads with 21.9 percent among those who have decided what is their choice for presidential. Tymoshenko was supported by 19.2 percent and Poroshenko by 14.8 percent. The research was conducted in a joint effort by the Social Monitoring Center, the Ukrainian Institute of Social Research of O. Yaremenko, the Info Sapiens Company, and the Sociological Group Rating. The poll of 10,000 was conducted in late January and had a margin of error of one percentage point.
Rada Committee on Legislative Support to Law Enforcement Activities Recommends Adopting Draft Law 8270 – Strengthening Sanctions for Election Violations
On February 6, the Verkhovna Rada Committee on Legislative Support to Law Enforcement Activities ended its consideration of Draft Law Number 8270 which aim at strengthening the current system of sanctions for election-related violations. The Committee recommended the parliament to consider in the upcoming plenary session under expedited parliamentary procedures and to pass the draft law in first reading
Draft Law Number 8270 was submitted to the Rada by the Cabinet of Ministers on April 13, 2018 and is designed to ensure effective, proportionate and dissuasive sanctions for electoral offenses. It was prepared by Civil Network OPORA in close cooperation with other civil society representatives, the National Police, the Prosecutor General’s Office, the Ministry of Interior and the CEC.
The legislation proposes amendments to the Code of Administrative Offenses, the Criminal Code and laws governing national and local elections by:
- Establishing criminal penalties for distributing goods and services to voters in election campaigning on behalf of a political party or candidate. Under current law, this violation is sanctioned by a warning to a party or candidate;
- Establishing criminal sanctions for forging, destroying and stealing ballot papers, protocols, candidate nominations for election commissions, commission decisions and records, voter lists and documents produced by or submitted to election commissions;
- Administering criminal sanctions for election commissioners who fail to fulfill their duties without a compelling reason;
- Administering fines for disclosing how a person has voted; stealing or destroying a voter’s ballot; and, restricting access to election commission sessions and campaign events;
- Increasing fines for election-related administrative offenses;
- Preventing election commissioners and other officials who commit electoral crimes from being appointed to similar positions for up to five years (the current restriction is three years which allows potential offenders to be appointed to election commissions during the next electoral cycle); and,
- Lifting the criminal liability for vote buying and distribution of goods and services for persons who voluntarily inform on electoral crime and contribute to its investigation.
If adopted, Draft Law Number 8270 would be a first step towards addressing impunity for elections-related offenses and improving the current, flawed enforcement system in Ukraine.
The need for Draft Law Number 8270 is highlighted in the 2017 IFES/OPORA Election Priority Paper. It is also considered a key election law reform priority by the Reanimation Package of Reforms. While strengthening the system of sanctions and liability is important, the overall success of combating electoral fraud and misbehavior strongly depends on effective performance of the police, investigators, prosecutors and courts in identifying, investigating and prosecuting criminal and administrative election-related offenses.
OPORA Presents Interim Observation Report on the Presidential Campaign
In the autumn of 2018, the Civil Network OPORA deployed long-term observers to all regions of Ukraine to monitor election campaigning in advance of the March 31 presidential election. On January 31, OPORA presented a new summary of findings of this monitoring initiative:
- In January 2019, 28 persons launched proactive campaign activities. At the time of their campaigning, most of them were not registered presidential candidates, which constitutes a violation of the provisions of the Presidential Election Law that explicitly prohibits campaigning before a candidate is registered by the CEC;
- The campaign in January was less intense compared to December 2018. Street and public events during candidates’ visits to the regions decreased as did the number of campaign tents where leaflets and other promotional material is distributed;
- The incumbent President and former Prime Minister Tymoshenko were leaders in terms of campaign intensity in January;
- Both registered and non-registered candidates relied on outdoor advertising such as billboards and so called ‘city lights’ (small stands). Outdoor campaign leaders were Poroshenko, Tymoshenko, Sadovyi, Hrytsenko, Liashko and Zelenskyi;
- Most actual and prospective presidential candidates actively placed paid advertising in the regional print media. Fourteen potential presidential candidates used the regional broadcasting media for large-scale campaigning;
- In January 2019, OPORA observers submitted 239 requests and claims to the National Police’s local offices. Most requests was related to distribution of printed materials without legally required data such as publisher information and circulation.
Committee of Voters of Ukraine Present January Election Observation Results
On February 6, the Committee of Voters of Ukraine (CVU) presented a report with results of their long-term observation in December 2018 and January 2019. Primary conclusions and recommendations are:
- Despite some flaws and inconsistencies and failure to amending the legislation in recent years, the Presidential Election Law provides for a sound legal base for democratic elections;
- The high number of commissioners in district and precinct election commissions, stemming from the large number of presidential candidates, is one of the challenges to effective election administration;
- Candidates should abstain from campaigning in schools and placing children’s photos in their campaign and official political party material; and,
- There is an unusually large number of nongovernmental organizations accredited to observe the election. According to the CVU, most registered organizations do not have election observation experience and many only registered in the recent months just before the beginning of the election process. Some organizations are affiliated with certain political actors which calls into question their professional independence and capacity to conduct impartial election observation.
The full report is available here in the Ukrainian language.
G7 Ambassadors Identify Electoral Reform as Priority
On January 29, the G7 countries’ ambassadors presented a list of key reforms that it will support during 2019 when the G7 is chaired by the ambassador of France. Among the reform priorities, the G7 ambassadors stressed the need to “reinforce (the) Central Election Commission’s capacity and independence, in order to guarantee fair presidential and parliamentary elections in compliance with OSCE/ODIHR standards”. They also called on stakeholders to “adopt electoral reforms strengthening integrity and inclusiveness in the view of upcoming parliamentary and local elections (2019-2020) in line with recognized international standards.”
In their statement, G7 Ambassadors also recognized reform progress that has been made since 2015 and vowed to continue its efforts to encourage further progress.
NAPC Suspends Public Funding to the Opposition Bloc Political Party
On February 1, the National Agency for the Prevention of Corruption (NAPC) formally decided to suspend public funding to the Opposition Bloc political party in the first quarter of 2019. The NAPC adopted this decision after it received conflicting information from different representatives of the Opposition Bloc and in response to an Ordinance of the Kyiv District Administrative Court.
The NAPC decision seems questionable given that the grounds for the suspension and termination of public funding are exhaustively listed in the political party law and the NAPC fail to reference them in its decision. The NAPC received contradicting information from the Opposition Bloc, mainly due to a split in the Bloc that occurred last year, but the agency is also obliged to identify who in the Bloc has the legal right to represent the Bloc under its statute and to adopt a decision based on these criteria.
The split happened in November 2018, when the Opposition Bloc faction in the Verkhovna Rada stripped their co-chair Yurii Boyko and MP Serhii Lyovochkin of their membership in the faction after Boyko announced he was teaming up with Vadym Rabinovych, another Opposition Bloc MP, to create the Opposition Platform “For Life”. The Platform has announced Boyko as its candidate in the 2019 presidential election.
The Opposition Bloc was scheduled to receive UAH 15,489,725 (some $573,000) in the first quarter of 2019. The party’s annual public funding amounts to UAH 61,959,000 ($2.2 million).
IFES Issues Opinion on Methodology for Determining the Value of In-Kind Donations to Political Parties
On January 23, the NAPC published a methodology for determining the value of in-kind donations to political parties. The agency adopted the methodology on November 16, 2018.
Approving this methodology could have constituted an important step toward successful implementation of the political finance reform, allowing the NAPC to monitor political parties’ compliance with their annual in-kind donation limits and sources of such donations. However, the methodology approved by the NAPC may instead complicate the reporting requirements for political parties without increasing the overall transparency of the process. The methodology will require significant amendments to bring it in line with Ukrainian legislation and international standards.
On January 31, IFES issued an opinion on the methodology. The full text is available here. Back in May 2018 IFES published a preliminary opinion on the NAPC draft methodology and reinforced its recommendations during public discussions of the draft methodology. The analysis of the adopted methodology shows that the May 2018 recommendations remain largely unaddressed.
- Evaluation of in-kind donations is too strict and formal.
- The methodology should oblige political parties to evaluate and report only those in-kind donations they are aware of.
- The methodology lacks clear direction on how political parties shall calculate the monetary value of in-kind donations.
- The methodology should entitle political parties to request clarification and interpretation from the NAPC if they face difficulty in evaluating in-kind donations.
- As the methodology is published, it is necessary to introduce amendments to other NAPC bylaws that outline the measures a political party shall take in case the monetary value of a donor’s in-kind contribution exceeds the legal donation limit, or if the donor is not eligible to make the donation.
Introducing a complicated procedure for evaluating even small donations may put an unjustified burden on political parties and their local organizations while any errors in political parties’ financial reports may lead to administrative or even criminal liability. Such an approach can also result in biased enforcement of sanctions for political finance violations. The risk is aggravated by the perceived lack of independence and ability of the NAPC to effectively exercise its functions related to preventing corruption, particularly political corruption.
An effective mechanism for evaluating in-kind donations would require amendments to the NAPC methodology to bring it in line with Ukrainian legislation and international standards and eliminate risks of biased enforcement by the NAPC. IFES recommends that NAPC further amends the methodology and involve all stakeholders, including government and state authorities, representatives of political parties, civil society and international organizations in the process.
Supreme Court Dismisses presidential candidate Hrytsenko’s Appeal Against CEC Decision on State Voter Register Access
On February 8, the Cassation Administrative Court of the Supreme Court turned aside an appeal by presidential candidate Anatolii Hrytsenko to a ruling allowing the CEC substantial control over the State Voter Register (SVR). A first instance court had ruled in favor of the CEC’s practice to allow a presidential candidate to reviewing an electronic copy of the SVR database – at a candidate’s request – on the CEC premises only.
In late January, Mr Hrytsenko raised concern about the new CEC practice established by Resolution Number 170 in October of last year which stipulates that the electronic copy of the SVR database is delivered to a representative of a candidate or political party at CEC premises only and that it can be reviewed on a CEC computer during office hours. Through a January 31 lawsuit in a Kyiv administrative court, he challenged the CEC’s procedure of delivery of the electronic SVR database to factions in the Rada and presidential candidates.
Hrytsenko claimed violations of Article 31.9 of the Presidential Election Law which states that political party factions can request and receive an electronic copy of the SVR voter data no later than 20 days after the beginning of the electoral process; while a presidential candidate is entitled to immediate delivery of the data upon request.
On February 4, the administrative court – the court of first instance – considered and rejected Hrytsenko’s claim
Article 24 of the Law on State Register of Voters allows each party with a Rada faction to receive an electronic copy of the SRV database 60 days prior to the presidential election. This copy must be protected by the CEC from unauthorized use and copying since it contains sensitive voter information. The party must return its copy to the CEC within two months.
The amendments challenged by Hrytsenko might be viewed as inconsistent with the Law on State Register of Voters as they set restrictions not foreseen by this Law, and further establish a procedure for review and scrutiny which do not serve the purpose of “public scrutiny” of the State Register of Voters under Article 24 of the Law on State Register of Voters. However, the more complex procedure approved by the CEC in October 2018 seems a logical consequence of requirements introduced by the State Service of Special Communications and Protection of Information of Ukraine in its Order Number 141 on July 20, 2007 and amended in 2015.
The CEC updated its procedure to make it consistent with the Order. The order makes it clear that key documents (with sensitive or classified information) can be used only on computers with cryptography and protection features designed for reviewing such documents. This means the SRV databases can only be inspected on specially adapted CEC computers. The 2019 presidential election is the first national election after the introduction of the amended CEC Procedure for accessing the SVR data.
Ban on Russian Observers in Ukrainian Elections
In a February 9 posting on its official Facebook page, the Russian Ministry of Foreign Affairs (MFA) announced it will refrain from sending observers to the March 31 Ukrainian presidential election in light of recent statements by the Ukrainian Ministry of Foreign Affairs and the Verkhovna Rada’s adopted on February 7 of Draft Law Number 9524 banning the issuance of observer accreditations to citizens of the Russian Federation in all future Ukrainian elections. The adopted bill needs the signature of the president to enter into force.
A spokesperson of the Russian MFA stated that “significant damage has been done to the ODIHR, which positions itself as a keeper of the gold standard of electoral monitoring principles. The Kiev authorities have, in fact, wiped their feet on these standards having shown once again an utter disregard for international law and their own obligations. Under these circumstances, Russia, to ensure the safety of its representatives in the ODIHR observation mission, has chosen not to send them to Ukraine.”
On February 7, Ingibjörg Sólrún Gísladóttir, Director of the Organization for Security and Cooperation in Europe’s Office for Democratic Institutions and Human Rights (ODIHR), in a letter to the Ukrainian Minister of Foreign Affairs, expressed her regret over the decision to block Russian citizens from taking part in the ODIHR election observation mission for the March 31 presidential election in Ukraine. She said “(t)he decision to deny the possibility of accreditation to citizens of one participating State is without precedent and contravenes commitments made by all participating States to invite observers from any other OSCE participating States that may wish to observe election proceedings to the extent permitted by law.” She added that “observers sent to take part in ODIHR election observations missions do not represent their respective countries, but rather the entire OSCE. They are obliged to follow ODIHR’s election observation methodology and are bound by the Office’s strict code of conduct for election observers, including remaining strictly impartial and not intervening in the election process in any way.”
The ODIHR subsequently confirmed it had removed the names of two Russian citizens from the list of applications for observer accreditation sent earlier to the CEC.
On February 8, the Slovak Minister of Foreign Affairs speaking in his capacity as Chairman-in-Office of the OSCE had a phone conversation with his Ukrainian counterpart and expressed regret over the Russian election observer ban and urged Ukrainian authorities to consider a solution that would allow observers from all OSCE countries to monitor the election.
Draft Law Number 9524, adopted on February 7, introduced a provision in all of Ukraine’s election laws banning Russian citizens from becoming observers in any future election in the country. It also negatively affects the European Network of Election Monitoring Organizations (ENEMO) that had earlier announced intentions to include members of the Moscow-based nongovernmental organization, Golos, in its election observation mission to Ukraine. The law, however, does not affect the 37 Russian citizens currently serving as members of the 778-member OSCE Special Monitoring Mission that are deployed throughout Ukraine in relation to the conflict in Donbas with a mandate “to observe and report in an impartial and objective way on the situation in Ukraine and to facilitate dialogue among all parties to the crisis.”
CHESNO Civic Movement urged presidential candidates to publish information on donations to electoral funds on a regular basis
The Law of Ukraine “On Election of the President of Ukraine” obliges managers of presidential candidates’ electoral funds to submit interim financial reports to the CEC and the NAPC, no later than five days prior to the election day. However, since such reports are published far too late, there will be little time left for the voters to scrutinize this information, hence it will be difficult for them to make rational and informed choice on the election day.
On February 11, CHESNO Civic Movement urged all candidates to publish information on the amounts and sources of all donations to their electoral funds on their web-sites and/or social media profiles on a weekly basis without waiting for the deadlines stipulated by the law.
International documents establishing political finance standards, such as Venice Commission Guidelines on the Financing of Political Parties and the OSCE/ODIHR and Venice Commission Guidelines on Political Party Regulation, do not oblige states to introduce mandatory interim reporting of political parties and candidates prior to election day. In Ukraine, interim reporting of parties and candidates is intended to increase transparency of campaign finance and raise awareness of voters, however due to limited time frames this provision cannot fully realize its potential.
Some countries have chosen a different approach by foreseeing regular publication of information on all donation to electoral funds during a certain period after such donations have been received by political parties or candidates. Such provision is absent from Ukrainian legislation, but the readiness of presidential candidates to disclose the information can significantly increase the transparency of the election campaign and help voters to make informed choices.
Thus, IFES supports the appeal by CHESNO Civic Movement and encourages all presidential candidates to publish information on donations to their electoral funds on a regular basis.
Freedom House’s Annual Report: Political Rights and Liberties Declined.
This month, Freedom House published its annual report on political rights and civil liberties titled “Democracy in Retreat. Freedom in the World 2019”. According to the report, Ukraine is perceived to be a “partly free” country. The report noted that in 2018 activists and journalists “endured harassment and assaults”. The report also points to Russia’s occupation of Crimea which includes targeted repression of Crimean Tatars and those who insist on maintaining their Ukrainian identity.
IFES Launches a Training Initiative for Judges of Administrative Courts
To address problems identified by IFES’ Electoral Justice Assessment from February 2018, IFES is designing and implementing a training program to support electoral justice in Ukraine in time for the March presidential election.
In partnership with the National School of Judges of Ukraine and USAID’s New Justice project, IFES organized a three-day training of trainers in Kyiv from January 30 through February 1. Twenty judges were trained on various aspects of material and procedural law related to the Presidential election and on interactive training techniques. These judges will now travel to the regions to conduct trainings for judges of district administrative courts in Dnipro, Kharkiv, Odesa, Lviv, and Kyiv. The first regional training took place in Dnipro on February 11-12, 2019.
The training program will help judges become more effective adjudicators of elections cases and help address problems that have plagued Ukrainian elections since independence. These trainings cover the electoral legal framework and election operations and timelines.